1997 Stock Plan - ECHELON CORP - 8-8-2012

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1997 Stock Plan - ECHELON CORP - 8-8-2012 Powered By Docstoc
					                                                                                                                       Exhibit 10.2

                                                       ECHELON CORPORATION

                                                          1997 STOCK PLAN
                                                (as amended and restated August 18, 2010) 

     1. Purposes of the Plan . The purposes of this 1997 Stock Plan are:
  
          •        to   attract and retain the best available personnel for positions of substantial responsibility,
  
          •        to   provide additional incentive to Employees, Directors and Consultants, and
  
          •        to   promote the success of the Company’s business.

          The Plan permits the grant of Incentive Stock Options, Nonstatutory Stock Options, Stock Purchase Rights,
Restricted Stock, Stock Appreciation Rights, Performance Units and Performance Shares.

     2. Definitions . As used herein, the following definitions shall apply:
          (a) “ Administrator ” means the Board or any of its Committees as shall be administering the Plan, in accordance with
Section 4 of the Plan. 

         (b) “ Affiliated SAR ” means an SAR that is granted in connection with a related Option, and which automatically will
be deemed to be exercised at the same time that the related Option is exercised.

           (c) “ Applicable Laws ” means the requirements relating to the administration of equity-based awards under U.S. state
corporate laws, U.S. federal and state securities laws, the Code, any stock exchange or quotation system on which the Common
Stock is listed or quoted and the applicable laws of any foreign country or jurisdiction where Awards are, or will be, granted
under the Plan.

         (d) “ Award ” means, individually or collectively, a grant under the Plan of Options, Stock Purchase Rights, Restricted
Stock, SARs, Performance Units or Performance Shares.

         (e) “ Award Agreement ” means the written or electronic agreement setting forth the terms and provisions applicable
to each Award granted under the Plan. The Award Agreement is subject to the terms and conditions of the Plan.

          (f) “ Board ” means the Board of Directors of the Company.

          (g) “ Cash Position ” means as to any Performance Period, the Company’ s level of cash and cash equivalents,
including, without limitation, amounts classified for financial reporting purposes as short-term investments and restricted
investments.
           (h) “ Code ” means the Internal Revenue Code of 1986, as amended. Any reference to a section of the Code herein will
be a reference to any successor or amended section of the Code.

          (i) “ Committee ” means a committee of Directors appointed by the Board in accordance with Section 4 of the Plan. 

          (j) “ Common Stock ” means the common stock of the Company.

          (k) “ Company ” means Echelon Corporation, a Delaware corporation.

          (l) “ Consultant ” means any person, including an advisor, engaged by the Company or a Parent or Subsidiary to
render services to such entity.

          (m) “ Determination Date ” means the latest possible date that will not jeopardize the qualification of an Award
granted under the Plan as “performance-based compensation” under Section 162(m) of the Code. 

          (n) “ Director ” means a member of the Board.

          (o) “ Disability ” means total and permanent disability as defined in Section 22(e)(3) of the Code. 

           (p) “ Earnings Per Share ” means as to any Performance Period, the Company’s or a business unit’s Net Income,
divided by a weighted average number of common shares outstanding and dilutive common equivalent shares deemed
outstanding, determined in accordance with U.S. GAAP; provided, however, that if Net Income as to any such Performance
Period is a negative amount, then Earnings Per Share means the Company’s or business unit’s Net Income, divided by a
weighted average number of common shares outstanding, determined in accordance with U.S. GAAP.

           (q) “ Employee ” means any person, including Officers and Directors, employed by the Company or any Parent or
Subsidiary of the Company. A Service Provider shall not cease to be an Employee in the case of (i) any leave of absence 
approved by the Company or (ii) transfers between locations of the Company or between the Company, its Parent, any
Subsidiary, or any successor. For purposes of Incentive Stock Options, no such leave may exceed ninety days, unless
reemployment upon expiration of such leave is guaranteed by statute or contract. If reemployment upon expiration of a leave of
absence approved by the Company is not so guaranteed, on the 181st day of such leave any Incentive Stock Option held by
the Participant shall cease to be treated as an Incentive Stock Option and shall be treated for tax purposes as a Nonstatutory
Stock Option. Neither service as a Director nor payment of a director’s fee by the Company shall be sufficient to constitute
“employment” by the Company.

          (r) “ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

           (s) “ Excluded Items ” includes, without limitation, (i) incentive compensation, (ii) in-process research and
development expenses, (iii) acquisition costs, (iv) compensation expense from equity compensation, (v) operating expenses 
from acquired businesses, (vi) amortization of acquired intangible assets, and (vii) such other unusual or one-time items as may
be identified by the Administrator.
  
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          (t) “ Fair Market Value ” means, as of any date, the value of Common Stock determined as follows:
                 (i) If the Common Stock is listed on any established stock exchange or a national market system, including
without limitation the Nasdaq National Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market, its Fair Market
Value shall be the closing sales price for such stock (or the closing bid, if no sales were reported) as quoted on such exchange
or system on the day of determination, as reported in The Wall Street Journal or such other source as the Administrator deems
reliable;

                (ii) If the Common Stock is regularly quoted by a recognized securities dealer but selling prices are not reported,
the Fair Market Value of a Share of Common Stock shall be the mean between the high bid and low asked prices for the Common
Stock on the day of determination, as reported in The Wall Street Journal or such other source as the Administrator deems
reliable; or

                 (iii) In the absence of an established market for the Common Stock, the Fair Market Value shall be determined in
good faith by the Administrator.

          (u) “ Fiscal Year ” means the fiscal year of the Company.

          (v) “ Freestanding SAR ” means a SAR that is granted independently of any Option.

          (w) “ Incentive Stock Option ” means an Option intended to qualify as an incentive stock option within the meaning
of Section 422 of the Code and the regulations promulgated thereunder. 

          (x) “ Individual Objectives ” means as to a Participant for any Performance Period, the objective and measurable goals
set by a “management by objectives” process and approved by the Administrator (in its discretion).

         (y) “ Net Income ” means as to any Performance Period, the Company’s or a business unit’s income after taxes
determined in accordance with U.S. GAAP, adjusted for any Excluded Items approved for exclusion by the Administrator.

          (z) “ Nonstatutory Stock Option ” means an Option not intended to qualify as an Incentive Stock Option.

          (aa) “ Officer ” means a person who is an officer of the Company within the meaning of Section 16 of the Exchange 
Act and the rules and regulations promulgated thereunder.

          (bb) “ Operating Cash Flow ” means as to any Performance Period, the Company’s or a business unit’s cash flow
generated from operating activities, as reported in the Company’s cash flow statements and calculated in accordance with U.S.
GAAP, adjusted for any Excluded Items approved for exclusion by the Administrator.
  
                                                                -3-
          (cc) “ Operating Income ” means as to any Performance Period, the Company’s or a business unit’s income from
operations determined in accordance with U.S. GAAP, adjusted for any Excluded Items approved for exclusion by the
Administrator.

          (dd) “ Option ” means a stock option granted pursuant to the Plan.

          (ee) “ Optionee ” means the holder of an outstanding Option or Stock Purchase Right granted under the Plan.

         (ff) “ Option Exchange Program ” means a program whereby outstanding Options or SARs are surrendered in
exchange for Options or SARs with a lower exercise price.

          (gg) “ Optioned Stock ” means the Common Stock subject to an Award.

          (hh) “ Parent ” means a “parent corporation,” whether now or hereafter existing, as defined in Section 424(e) of the 
Code.

          (ii) “ Participant ” means the holder of an outstanding Award, including any Optionee.

           (jj) “ Performance Goals ” means the goal(s) (or combined goal(s)) determined by the Administrator (in its discretion)
to be applicable to a Participant with respect to an Award granted under the Plan. As determined by the Administrator, the
Performance Goals applicable to an Award may provide for a targeted level or levels of achievement using one or more of the
following measures: (a) Cash Position, (b) Earnings Per Share, (c) Individual Objectives, (d) Net Income, (e) Operating Cash 
Flow, (f) Operating Income, (g) Return on Assets, (h) Return on Equity, (i) Return on Sales, (j) Revenue and (k) Total 
Shareholder Return. The Performance Goals may differ from Participant to Participant and from Award to Award. Prior to the
Determination Date, the Administrator shall determine whether any significant element(s) shall be included in or excluded from
the calculation of any Performance Goal with respect to any Participant.

         (kk) “ Performance Period ” means any Fiscal Year of the Company or such other period as determined by the
Administrator in its sole discretion.

          (ll) “ Performance Share ” means the right to receive Shares or cash pursuant to Section 9. 

          (mm) “ Performance Unit ” means the right to receive Shares or cash pursuant to Section 9. 

           (nn) “ Period of Restriction ” means the period during which the transfer of Shares of Restricted Stock are subject to
restrictions and therefore, the Shares are subject to a substantial risk of forfeiture. Such restrictions may be based on the
passage of time, the achievement of Performance Goals, or the occurrence of other events as determined by the Administrator.
  
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          (oo) “ Plan ” means this 1997 Stock Plan, as amended and restated.

         (pp) “ Restricted Stock ” means shares of Common Stock issued pursuant to a Stock Purchase Right under
Section 7A of the Plan or an Award of Restricted Stock under Section 7B of the Plan, or issued pursuant to the early exercise of 
an Option.

          (qq) “ Return on Assets ” means as to any Performance Period, the percentage equal to the Company’s or a business
unit’s Operating Income divided by average net Company or business unit, as applicable, assets, determined in accordance with
U.S. GAAP.

          (rr) “ Return on Equity ” means as to any Performance Period, the percentage equal to the Company’s Net Income
divided by average stockholder’s equity, determined in accordance with U.S. GAAP.

          (ss) “ Return on Sales ” means as to any Performance Period, the percentage equal to the Company’s or a business
unit’s Operating Income divided by the Company’s or the business unit’s, as applicable, Revenue.

         (tt) “ Revenue ” means as to any Performance Period, the Company’s or business unit’s net sales, determined in
accordance with U.S. GAAP.

           (uu) “ Rule 16b-3 ” means Rule 16b-3 of the Exchange Act or any successor to Rule 16b-3, as in effect when discretion
is being exercised with respect to the Plan.

          (vv) “ Section 16(b) ” means Section 16(b) of the Exchange Act. 

          (ww) “ Service Provider ” means an Employee, Director or Consultant.

          (xx) “ Share ” means a share of the Common Stock, as adjusted in accordance with Section 11 of the Plan. 

          (yy) “ Stock Appreciation Right ” or “ SAR ” means an Award, granted alone or in connection with an Option, that
pursuant to Section 8 is designated as a SAR. 

          (zz) “ Stock Purchase Right ” means the right to purchase Common Stock pursuant to Section 7A of the Plan. 

          (aaa) “ Subsidiary ” means a “subsidiary corporation”, whether now or hereafter existing, as defined in Section 424(f) 
of the Code.

          (bbb) “ Tandem SAR ” means a SAR that is granted in connection with a related Option, the exercise of which will
require forfeiture of the right to purchase an equal number of Shares under the related Option (and when a Share is purchased
under the Option, the SAR will be canceled to the same extent).

         (ccc) “ Total Shareholder Return ” means as to any Performance Period, the total return (change in share price plus
reinvestment of any dividends) of a Share.
  
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          (ddd) “ U.S. GAAP ” means generally accepted accounting principles in the United States.

     3. Stock Subject to the Plan . Subject to the provisions of Section 11 of the Plan, the maximum aggregate number of Shares 
which may be optioned and sold under the Plan is 6,200,000 Shares, plus an annual increase to be added on the first day of the
Company’s fiscal year (beginning in 1999) equal to the lesser of (i) 5,000,000 Shares, (ii) 5% (4% for fiscal years beginning after 
the Company’s 2004 fiscal year) of the outstanding shares on such date or (iii) a lesser amount determined by the Board. The 
Shares may be authorized, but unissued, or reacquired Common Stock. Shares will not be deemed to have been issued pursuant
to the Plan with respect to any portion of an Award that is settled in cash. Upon payment in Shares pursuant to the exercise of
an SAR, the number of Shares available for issuance under the Plan will be reduced only by the number of Shares actually
issued in such payment. If the exercise price of an Option is paid by tender to the Company, or attestation to the ownership, of
Shares owned by the Participant, the number of Shares available for issuance under the Plan will be reduced by the gross
number of Shares for which the Option is exercised.

           If an Award expires or becomes unexercisable without having been exercised in full, or is surrendered pursuant to an
Option Exchange Program, the unpurchased Shares which were subject thereto shall become available for future grant or sale
under the Plan (unless the Plan has terminated); provided , however , that Shares that have actually been issued under the Plan
shall not be returned to the Plan and shall not become available for future distribution under the Plan, except that if unvested
Shares of Restricted Stock are forfeited or repurchased by the Company, such Shares shall become available for future grant
under the Plan.

     4. Administration of the Plan .

          (a) Procedure .

                 (i) Multiple Administrative Bodies. The Plan may be administered by different Committees with respect to
different groups of Service Providers.

                (ii) Section 162(m) . To the extent that the Administrator determines it to be desirable to qualify Options granted
hereunder as “performance-based compensation” within the meaning of Section 162(m) of the Code, the Plan shall be 
administered by a Committee of two or more “outside directors” within the meaning of Section 162(m) of the Code. 

                 (iii) Rule 16b-3 . To the extent desirable to qualify transactions hereunder as exempt under Rule 16b-3, the
transactions contemplated hereunder shall be structured to satisfy the requirements for exemption under Rule 16b-3.

               (iv) Other Administration . Other than as provided above, the Plan shall be administered by (A) the Board or 
(B) a Committee, which committee shall be constituted to satisfy Applicable Laws. 

                  (b) Powers of the Administrator . Subject to the provisions of the Plan, and in the case of a Committee, subject
to the specific duties delegated by the Board to such Committee, the Administrator shall have the authority, in its discretion:
  
                                                                 -6-
                 (i) to determine the Fair Market Value;

                 (ii) to select the Service Providers to whom Awards may be granted hereunder;

                 (iii) to determine the number of Shares to be covered by each Award granted hereunder;

                 (iv) to approve forms of agreement for use under the Plan;

                  (v) to determine the terms and conditions, not inconsistent with the terms of the Plan, of any Award granted
hereunder. Such terms and conditions include, but are not limited to, the exercise price, the time or times when Awards may be
exercised (which may be based on performance criteria), any vesting acceleration or waiver of forfeiture restrictions, and any
restriction or limitation regarding any Award or the shares of Common Stock relating thereto, based in each case on such
factors as the Administrator, in its sole discretion, shall determine;

                 (vi) to institute an Option Exchange Program;

                 (vii) to construe and interpret the terms of the Plan and awards granted pursuant to the Plan;

                 (viii) to prescribe, amend and rescind rules and regulations relating to the Plan, including rules and regulations
relating to sub-plans established for the purpose of satisfying applicable foreign laws;

                (ix) to modify or amend each Award (subject to Section 16(c) of the Plan), including the discretionary authority 
to extend the post-termination exercisability period of Awards longer than is otherwise provided for in the Plan.
Notwithstanding the foregoing, the Administrator may not modify or amend an Option or SAR to reduce the exercise price of
such Option or SAR after it has been granted (except for adjustments made pursuant to Section 11), unless approved by the 
Company’s stockholders;

                 (x) to allow Participants to satisfy withholding tax obligations in such manner as prescribed in Section 12; 

               (xi) to authorize any person to execute on behalf of the Company any instrument required to effect the grant of
an Award previously granted by the Administrator;

                (xii) to allow a Participant to defer the receipt of the payment of cash or the delivery of Shares that would
otherwise be due to such Participant under an Award; and

                 (xiii) to make all other determinations deemed necessary or advisable for administering the Plan.

           (c) Effect of Administrator’s Decision . The Administrator’s decisions, determinations and interpretations shall be
final and binding on all Participants and any other holders of Awards.
  
                                                                 -7-
     5. Eligibility . Nonstatutory Stock Options, Stock Purchase Rights, Restricted Stock, Stock Appreciation Rights,
Performance Units and Performance Shares may be granted to Service Providers. Incentive Stock Options may be granted only
to Employees.

     6. Stock Options .

          (a) Limitations .

                 (i) Each Option shall be designated in the Award Agreement as either an Incentive Stock Option or a
Nonstatutory Stock Option. However, notwithstanding such designation, to the extent that the aggregate Fair Market Value of
the Shares with respect to which Incentive Stock Options are exercisable for the first time by the Participant during any calendar
year (under all plans of the Company and any Parent or Subsidiary) exceeds $100,000, such Options shall be treated as
Nonstatutory Stock Options. For purposes of this Section 6(a), Incentive Stock Options shall be taken into account in the order 
in which they were granted. The Fair Market Value of the Shares shall be determined as of the time the Option with respect to
such Shares is granted.

                 (ii) The following limitations shall apply to grants of Options:
                      (A) No Service Provider shall be granted, in any Fiscal Year, Options to purchase more than 1,000,000
Shares.

                      (B) In connection with his or her initial service, a Service Provider may be granted Options to purchase up
to an additional 1,000,000 Shares which shall not count against the limit set forth in subsection (i) above. 

                     (C) The foregoing limitations shall be adjusted proportionately in connection with any change in the
Company’s capitalization as described in Section 11. 

                      (D) If an Option is cancelled in the same Fiscal Year in which it was granted (other than in connection with
a transaction described in Section 11), the cancelled Option will be counted against the limits set forth in subsections (A) and 
(B) above. For this purpose, if the exercise price of an Option is reduced, the transaction will be treated as a cancellation of the 
Option and the grant of a new Option.

           (b) Term of Option . The term of each Option shall be stated in the Award Agreement. In the case of an Incentive
Stock Option, the term shall be ten (10) years from the date of grant or such shorter term as may be provided in the Award 
Agreement. Moreover, in the case of an Incentive Stock Option granted to a Participant who, at the time the Incentive Stock
Option is granted, owns stock representing more than ten percent (10%) of the total combined voting power of all classes of 
stock of the Company or any Parent or Subsidiary, the term of the Incentive Stock Option shall be five (5) years from the date of 
grant or such shorter term as may be provided in the Award Agreement.

          (c) Option Exercise Price and Consideration .

                 (i) Exercise Price . The per share exercise price for the Shares to be issued pursuant to exercise of an Option
shall be determined by the Administrator, subject to the following:
  
                                                                 -8-
                      (A) In the case of an Incentive Stock Option

                           a) granted to an Employee who, at the time the Incentive Stock Option is granted, owns stock
representing more than ten percent (10%) of the voting power of all classes of stock of the Company or any Parent or 
Subsidiary, the per Share exercise price shall be no less than 110% of the Fair Market Value per Share on the date of grant.

                            b) granted to any Employee other than an Employee described in paragraph (A) immediately above, 
the per Share exercise price shall be no less than 100% of the Fair Market Value per Share on the date of grant.

                      (B) In the case of a Nonstatutory Stock Option, the per Share exercise price shall be determined by the
Administrator, but shall be no less than 100% of the Fair Market Value per Share on the date of grant.

                    (C) Notwithstanding the foregoing, Options may be granted with a per Share exercise price of less than
100% of the Fair Market Value per Share on the date of grant pursuant to a merger or other corporate transaction.

                (ii) Waiting Period and Exercise Dates. At the time an Option is granted, the Administrator shall fix the period
within which the Option may be exercised and shall determine any conditions which must be satisfied before the Option may be
exercised.

                (iii) Form of Consideration . The Administrator shall determine the acceptable form of consideration for
exercising an Option, including the method of payment. In the case of an Incentive Stock Option, the Administrator shall
determine the acceptable form of consideration at the time of grant. Such consideration may consist entirely of:
                      (A) cash;

                      (B) check;

                      (C) promissory note (provided that a promissory note will not be acceptable consideration to the extent
the issuance of a promissory note would not be permitted by Applicable Laws);

                      (D) other Shares, provided Shares acquired directly or indirectly from the Company, (A) have been owned 
by the Participant and not subject to substantial risk of forfeiture for more than six months on the date of surrender, and
(B) have a Fair Market Value on the date of surrender equal to the aggregate exercise price of the Shares as to which said Option 
will be exercised;

                   (E) consideration received by the Company under a cashless exercise program implemented by the
Company in connection with the Plan;

                       (F) a reduction in the amount of any Company liability to the Participant, including any liability
attributable to the Participant’s participation in any Company-sponsored deferred compensation program or arrangement;
  
                                                               -9-
                       (G) any combination of the foregoing methods of payment; or

                       (H) such other consideration and method of payment for the issuance of Shares to the extent permitted by
Applicable Laws.

          (d) Exercise of Option .

                 (i) Procedure for Exercise; Rights as a Stockholder . Any Option granted hereunder shall be exercisable
according to the terms of the Plan and at such times and under such conditions as determined by the Administrator and set
forth in the Award Agreement. Unless the Administrator provides otherwise, vesting of Options granted hereunder shall be
tolled during any unpaid leave of absence. An Option may not be exercised for a fraction of a Share.

                       An Option shall be deemed exercised when the Company receives: (i) written or electronic notice of 
exercise (in such form as the Administrator specify from time to time) from the person entitled to exercise the Option, and (ii) full 
payment for the Shares with respect to which the Option is exercised (together with any applicable withholding taxes). Full
payment may consist of any consideration and method of payment authorized by the Administrator and permitted by the Award
Agreement and the Plan. Shares issued upon exercise of an Option shall be issued in the name of the Participant or, if requested
by the Participant, in the name of the Participant and his or her spouse. Until the Shares are issued (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or
receive dividends or any other rights as a shareholder shall exist with respect to the Optioned Stock, notwithstanding the
exercise of the Option. The Company shall issue (or cause to be issued) such Shares promptly after the Option is exercised. No
adjustment will be made for a dividend or other right for which the record date is prior to the date the Shares are issued, except
as provided in Section 11 of the Plan. 

                      Exercising an Option in any manner shall decrease the number of Shares thereafter available, both for
purposes of the Plan and for sale under the Option, by the number of Shares as to which the Option is exercised.

                 (ii) Termination of Relationship as a Service Provider . If a Participant ceases to be a Service Provider, other
than upon the Participant’s death or Disability, the Participant may exercise his or her Option within such period of time as is
specified in the Award Agreement to the extent that the Option is vested on the date of termination (but in no event later than
the expiration of the term of such Option as set forth in the Award Agreement). In the absence of a specified time in the Award
Agreement, the Option shall remain exercisable for three (3) months following the Participant’s termination. If, on the date of
termination, the Participant is not vested as to his or her entire Option, the Shares covered by the unvested portion of the
Option shall revert to the Plan. If, after termination, the Participant does not exercise his or her Option within the time specified
by the Administrator, the Option shall terminate, and the Shares covered by such Option shall revert to the Plan.

                  (iii) Disability of Participant . If a Participant ceases to be a Service Provider as a result of the Participant’s
Disability, the Participant may exercise his or her Option within such period of time as is specified in the Award Agreement to
the extent the Option is vested
  
                                                                  -10-
on the date of termination (but in no event later than the expiration of the term of such Option as set forth in the Award
Agreement). In the absence of a specified time in the Award Agreement, the Option shall remain exercisable for twelve
(12) months following the Participant’s termination. If, on the date of termination, the Participant is not vested as to his or her
entire Option, the Shares covered by the unvested portion of the Option shall revert to the Plan. If, after termination, the
Participant does not exercise his or her Option within the time specified herein, the Option shall terminate, and the Shares
covered by such Option shall revert to the Plan.

                   (iv) Death of Participant . If a Participant dies while a Service Provider, the Option may be exercised within such
period of time as is specified in the Award Agreement (but in no event later than the expiration of the term of such Option as set
forth in the Notice of Grant), by the Participant’s estate or by a person who acquires the right to exercise the Option by bequest
or inheritance, but only to the extent that the Option is vested on the date of death. In the absence of a specified time in the
Award Agreement, the Option shall remain exercisable for twelve (12) months following the Participant’s termination. If, at the
time of death, the Participant is not vested as to his or her entire Option, the Shares covered by the unvested portion of the
Option shall immediately revert to the Plan. The Option may be exercised by the executor or administrator of the Participant’s
estate or, if none, by the person(s) entitled to exercise the Option under the Participant’s will or the laws of descent or
distribution. If the Option is not so exercised within the time specified herein, the Option shall terminate, and the Shares covered
by such Option shall revert to the Plan.

     7A. Stock Purchase Rights .

           (a) Rights to Purchase . Stock Purchase Rights may be issued either alone, in addition to, or in tandem with other
Awards granted under the Plan and/or cash awards made outside of the Plan. After the Administrator determines that it will
offer Stock Purchase Rights under the Plan, it shall advise the offeree in writing or electronically of the terms and conditions
related to the offer, including the Period of Restriction, the number of Shares that the Participant shall be entitled to purchase,
the price to be paid, and the time within which the Participant must accept such offer. Notwithstanding the foregoing, during
any Fiscal Year no Participant will receive more than an aggregate of 200,000 Shares subject to Stock Purchase Rights or
Restricted Stock Awards; provided, however, that in connection with a Participant’s initial service as an Employee, an Employee
may be granted an aggregate of up to an additional 400,000 Shares subject to Stock Purchase Rights or Restricted Stock
Awards. The offer shall be accepted by execution of an Award Agreement in the form determined by the Administrator.

          (b) Repurchase Option . Unless the Administrator determines otherwise, during the Period of Restriction, the Award
Agreement shall grant the Company a repurchase option exercisable upon the voluntary or involuntary termination of the
purchaser’s service with the Company for any reason (including death or Disability). Unless the Administrator determines
otherwise, the purchase price for Shares repurchased pursuant to the Award Agreement shall be the original price paid by the
purchaser and may be paid by cancellation of any indebtedness of the purchaser to the Company.

          (c) Other Provisions. The Award Agreement shall contain such other terms, provisions and conditions not
inconsistent with the Plan as may be determined by the Administrator in its sole discretion.
  
                                                                 -11-
           (d) Rights as a Stockholder . Once the Stock Purchase Right is exercised, the Participant shall have the rights
equivalent to those of a shareholder, and shall be a shareholder when his or her purchase is entered upon the records of the
duly authorized transfer agent of the Company. No adjustment will be made for a dividend or other right for which the record
date is prior to the date the Stock Purchase Right is exercised, except as provided in Section 11 of the Plan. 

          (e) Section 162(m) Performance Restrictions . For purposes of qualifying a Stock Purchase Right as “performance-
based compensation” under Section 162(m) of the Code, the Administrator, in its discretion, may set restrictions based upon the 
achievement of Performance Goals, which shall be set by the Administrator on or before the Determination Date. In this
connection, the Administrator shall follow any procedures determined by it from time to time to be necessary or appropriate to
ensure qualification of the Stock Purchase Right under Section 162(m) of the Code (e.g., in determining the Performance Goals). 

     7B. Restricted Stock .

           (a) Grant of Restricted Stock . Subject to the terms and provisions of the Plan, the Administrator, at any time and from
time to time, may grant Shares of Restricted Stock to Service Providers in such amounts as the Administrator, in its sole
discretion, will determine. Notwithstanding the foregoing, during any Fiscal Year no Participant will receive more than an
aggregate of 200,000 Shares subject to Stock Purchase Rights or Restricted Stock Awards; provided, however, that in
connection with a Participant’s initial service as an Employee, an Employee may be granted an aggregate of up to an additional
400,000 Shares subject to Stock Purchase Rights or Restricted Stock Awards.

           (b) Restricted Stock Agreement . Each Award of Restricted Stock will be evidenced by an Award Agreement that will
specify the Period of Restriction, the number of Shares granted, and such other terms and conditions as the Administrator, in its
sole discretion, will determine. Unless the Administrator determines otherwise, Shares of Restricted Stock will be held by the
Company as escrow agent until the restrictions on such Shares have lapsed.

          (c) Transferability . Except as provided in this Section 7B or as otherwise permitted by the Administrator, Shares of 
Restricted Stock may not be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated until the end of the
applicable Period of Restriction.

          (d) Other Restrictions . The Administrator, in its sole discretion, may impose such other restrictions on Shares of
Restricted Stock as it may deem advisable or appropriate.

          (e) Removal of Restrictions . Except as otherwise provided in this Section 7B, Shares of Restricted Stock covered by 
each Restricted Stock grant made under the Plan will be released from escrow as soon as practicable after the last day of the
Period of Restriction. The Administrator, in its discretion, may accelerate the time at which any restrictions will lapse or be
removed.

         (f) Voting Rights . During the Period of Restriction, Service Providers holding Shares of Restricted Stock granted
hereunder may exercise full voting rights with respect to those Shares, unless the Administrator determines otherwise.
  
                                                               -12-
          (g) Dividends and Other Distributions . During the Period of Restriction, Service Providers holding Shares of
Restricted Stock will be entitled to receive all dividends and other distributions paid with respect to such Shares unless
otherwise provided in the Award Agreement. Any such dividends or distributions will be subject to the same restrictions on
transferability and forfeitability as the Shares of Restricted Stock with respect to which they were paid.

          (h) Return of Restricted Stock to Company . On the date set forth in the Award Agreement, the Restricted Stock for
which restrictions have not lapsed will revert to the Company and again will become available for grant under the Plan.

          (i) Performance Restrictions . The Administrator, in its discretion, may set restrictions based upon the achievement of
Performance Goals. The Performance Goals will be set by the Administrator on or before the Determination Date pursuant to
such procedures determined by the Administrator from time to time as it deems necessary or appropriate.

     8. Stock Appreciation Rights .

           (a) Grant of SARs . Subject to the terms and conditions of the Plan, a SAR may be granted to Service Providers at any
time and from time to time as will be determined by the Administrator, in its sole discretion. The Administrator may grant
Affiliated SARs, Freestanding SARs, Tandem SARs, or any combination thereof.

          (b) Number of Shares . The Administrator will have complete discretion to determine the number of SARs granted to
any Participant, provided that during any Fiscal Year, no Participant will be granted SARs covering more than 1,000,000 Shares.
Notwithstanding the foregoing limitation, in connection with a Participant’s initial service as an Employee, an Employee may be
granted SARs covering up to an additional 1,000,000 Shares.

          (c) Exercise Price and Other Terms . The Administrator, subject to the provisions of the Plan, will have complete
discretion to determine the terms and conditions of SARs granted under the Plan. In the case of a Freestanding SAR, the
exercise price will be not less than one hundred percent (100%) of the Fair Market Value of a Share on the date of grant. The 
exercise price of Tandem or Affiliated SARs will equal the exercise price of the related Option.

          (d) Exercise of Tandem SARs . Tandem SARs may be exercised for all or part of the Shares subject to the related
Option upon the surrender of the right to exercise the equivalent portion of the related Option. A Tandem SAR may be exercised
only with respect to the Shares for which its related Option is then exercisable. With respect to a Tandem SAR granted in
connection with an Incentive Stock Option: (a) the Tandem SAR will expire no later than the expiration of the underlying 
Incentive Stock Option; (b) the value of the payout with respect to the Tandem SAR will be for no more than one hundred 
percent (100%) of the difference between the exercise price of the underlying Incentive Stock Option and the Fair Market Value 
of the Shares subject to the underlying Incentive Stock Option at the time the Tandem SAR is exercised; and (c) the Tandem 
SAR will be exercisable only when the Fair Market Value of the Shares subject to the Incentive Stock Option exceeds the
Exercise Price of the Incentive Stock Option.
  
                                                               -13-
         (e) Exercise of Affiliated SARs . An Affiliated SAR will be deemed to be exercised upon the exercise of the related
Option. The deemed exercise of an Affiliated SAR will not necessitate a reduction in the number of Shares subject to the related
Option.

         (f) Exercise of Freestanding SARs . Freestanding SARs will be exercisable on such terms and conditions as the
Administrator, in its sole discretion, will determine.

           (g) SAR Agreement . Each SAR grant will be evidenced by an Award Agreement that will specify the exercise price,
the term of the SAR, the conditions of exercise, and such other terms and conditions as the Administrator, in its sole discretion,
will determine.

            (h) Expiration of SARs . An SAR granted under the Plan will expire upon the date determined by the Administrator, in
its sole discretion, and set forth in the Award Agreement. Notwithstanding the foregoing, the rules of Section 6(d) also will 
apply to SARs.

        (i) Payment of SAR Amount . Upon exercise of an SAR, a Participant will be entitled to receive payment from the
Company, less any applicable withholding taxes, in an amount determined by multiplying:
          (i) The difference between the Fair Market Value of a Share on the date of exercise and the exercise price; times

          (ii) The number of Shares with respect to which the SAR is exercised.

          At the discretion of the Administrator, the payment upon SAR exercise may be in cash, in Shares of equivalent value,
or in some combination thereof.

     9. Performance Units and Performance Shares .

           (a) Grant of Performance Units/Shares . Performance Units and Performance Shares may be granted to Service
Providers at any time and from time to time, as will be determined by the Administrator, in its sole discretion. The Administrator
will have complete discretion in determining the number of Performance Units and Performance Shares granted to each
Participant provided that during any Fiscal Year, (a) no Participant will receive Performance Units having an initial value greater 
than $1,000,000, and (b) no Participant will receive more than 1,000,000 Performance Shares. Notwithstanding the foregoing 
limitation, in connection with a Participant’s initial service as an Employee, an Employee may be granted up to an additional
1,000,000 Performance Shares.

          (b) Value of Performance Units/Shares . Each Performance Unit will have an initial value that is established by the
Administrator on or before the date of grant. Each Performance Share will have an initial value equal to the Fair Market Value of
a Share on the date of grant.

           (c) Performance Objectives and Other Terms . The Administrator will set performance objectives or other vesting
provisions (including, without limitation, continued status as a Service Provider) in its discretion which, depending on the
extent to which they are met, will determine the number or value of Performance Units/Shares that will be paid out to the Service
  
                                                                -14-
Provider. The time period during which the performance objectives or other vesting provisions must be met will be called the
“Performance Period.” Each Award of Performance Units/Shares will be evidenced by an Award Agreement that will specify the
Performance Period, and such other terms and conditions as the Administrator, in its sole discretion, will determine.

               (i) General Performance Objectives . The Administrator may set performance objectives based upon the
achievement of Company-wide, divisional, or individual goals, or any other basis determined by the Administrator in its
discretion.

                  (ii) Section 162(m) Performance Objectives . For purposes of qualifying grants of Performance Units/Shares as
“performance-based compensation” under Section 162(m) of the Code, the Administrator, in its discretion, may determine that 
the performance objectives applicable to Performance Units/Shares will be based on the achievement of Performance Goals. The
Administrator will set the Performance Goals on or before the Determination Date. In granting Performance Units/Shares which
are intended to qualify under Section 162(m) of the Code, the Administrator will follow any procedures determined by it from 
time to time to be necessary or appropriate to ensure qualification of the Performance Units/Shares under Section 162(m) of the 
Code (e.g., in determining the Performance Goals).

            (d) Earning of Performance Units/Shares . After the applicable Performance Period has ended, the holder of
Performance Units/Shares will be entitled to receive a payout of the number of Performance Units/Shares earned by the
Participant over the Performance Period, to be determined as a function of the extent to which the corresponding performance
objectives or other vesting provisions have been achieved. After the grant of a Performance Unit/Share, the Administrator, in
its sole discretion, may reduce or waive any performance objectives or other vesting provisions for such Performance
Unit/Share.

           (e) Form and Timing of Payment of Performance Units/Shares . Payment of earned Performance Units/Shares will be
made as soon as practicable after the expiration of the applicable Performance Period. The Administrator, in its sole discretion,
may pay earned Performance Units/Shares in the form of cash, in Shares (which have an aggregate Fair Market Value equal to
the value of the earned Performance Units/Shares at the close of the applicable Performance Period) or in a combination thereof,
taking into consideration any applicable withholding taxes which may be due as a result of the Award.

          (f) Cancellation of Performance Units/Shares . On the date set forth in the Award Agreement, all unearned or
unvested Performance Units/Shares will be forfeited to the Company, and again will be available for grant under the Plan.

     10. Transferability of Awards . Unless determined otherwise by the Administrator, an Award may not be sold, pledged,
assigned, hypothecated, transferred, or disposed of in any manner other than by will or by the laws of descent or distribution
and may be exercised, during the lifetime of the Participant, only by the Participant. If the Administrator makes an Award
transferable, such Award will contain such additional terms and conditions as the Administrator deems appropriate.
  
                                                              -15-
     11. Adjustments Upon Changes in Capitalization, Dissolution, Merger or Asset Sale .

          (a) Changes in Capitalization . Subject to any required action by the shareholders of the Company, the number and
class of Shares that may be delivered under the Plan and/or the number, class, and price of Shares covered by each outstanding
Award, and the numerical Share limits set forth in Sections 3, 6, 7A, 7B, 8 and 9 shall be proportionately adjusted for any 
increase or decrease in the number of issued shares of Common Stock resulting from a stock split, reverse stock split, stock
dividend, combination or reclassification of the Common Stock, or any other increase or decrease in the number of issued
shares of Common Stock effected without receipt of consideration by the Company; provided , however , that conversion of
any convertible securities of the Company shall not be deemed to have been “effected without receipt of consideration.” Such
adjustment shall be made by the Board, whose determination in that respect shall be final, binding and conclusive. Except as
expressly provided herein, no issuance by the Company of shares of stock of any class, or securities convertible into shares of
stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number or price of shares
of Common Stock subject to an Award.

           (b) Dissolution or Liquidation . In the event of the proposed dissolution or liquidation of the Company, the
Administrator shall notify each Participant as soon as practicable prior to the effective date of such proposed transaction. The
Administrator in its discretion may provide for a Participant to have the right to exercise his or her Award until ten (10) days 
prior to such transaction as to all of the Optioned Stock covered thereby, including Shares as to which the Award would not
otherwise be exercisable. In addition, the Administrator may provide that any Company repurchase option applicable to any
Shares purchased upon exercise of an Award shall lapse as to all such Shares, provided the proposed dissolution or liquidation
takes place at the time and in the manner contemplated. To the extent it has not been previously exercised, an Award will
terminate immediately prior to the consummation of such proposed action.

          (c) Merger or Asset Sale .

                  (i) General . In the event of a merger of the Company with or into another corporation, or the sale of
substantially all of the assets of the Company (a “Merger”), each outstanding Award shall be assumed or an equivalent award
substituted by the successor corporation or a Parent or Subsidiary of the successor corporation (the “Successor Corporation”).
In the event that the Successor Corporation refuses to assume or substitute for the Award, the Participant shall fully vest in and
have the right to exercise his or her Option or Stock Appreciation Right as to all of the Optioned Stock, including Shares as to
which it would not otherwise be vested or exercisable, all restrictions on Restricted Stock will lapse, and, with respect to
Performance Shares and/or Units, all performance goals or other vesting criteria will be deemed achieved at target levels and all
other terms and conditions met. If an Option or Stock Appreciation Right becomes fully vested and exercisable in lieu of
assumption or substitution in the event of a Merger, the Administrator shall notify the Participant in writing or electronically
that such Award shall be fully vested and exercisable for a period of fifteen (15) days from the date of such notice, and the 
Award shall terminate upon the expiration of such period. For the purposes of this paragraph, the Award shall be considered
assumed if, following the Merger, the award confers the right to purchase or receive, for each Share subject to the Award
immediately prior to the Merger, the consideration (whether stock, cash, or other securities or property) or, in the case of a
Stock Appreciation Right, upon the exercise
  
                                                               -16-
of which the Administrator determines to pay cash or a Performance Share and/or Unit which the Administrator can determine
to pay in cash, the fair market value of the consideration received in the Merger by holders of Common Stock for each Share
held on the effective date of the transaction (and if holders were offered a choice of consideration, the type of consideration
chosen by the holders of a majority of the outstanding Shares); provided , however , that if such consideration received in the
Merger is not solely common stock of the Successor Corporation or its Parent, the Administrator may, with the consent of the
Successor Corporation, provide for the consideration to be received upon the exercise of an Option or Stock Appreciation Right
or upon the payout of a Performance Share and/or Unit, for each Share subject to an Award (or in the case of Performance
Units, the number of implied Shares determined by dividing the value of the Performance Units by the per share consideration
received by holders of Common Stock in the Merger), to be solely common stock of the Successor Corporation or its Parent
equal in fair market value to the per share consideration received by holders of Common Stock in the Merger.

      Notwithstanding anything in this Section 11(c) to the contrary, an Award that vests, is earned or paid-out upon the
satisfaction of one or more performance goals will not be considered assumed if the Company or its successor modifies any of
such performance goals without the Participant’s consent; provided, however, a modification to such performance goals only to
reflect the successor corporation’s corporate structure post-merger or post-sale of assets will not be deemed to invalidate an
otherwise valid Award assumption.

                  (ii) Employee Options Following Assumption or Substitution . Following an assumption or substitution in
connection with a Merger as described in Section 11(c)(i) above, and in the event that upon the Merger the stockholders of the 
Company immediately prior to the Merger hold less than 50% of the outstanding voting equity securities of the Successor
Corporation following the Merger (a “Change of Control Merger”), if a Participant’s status as an Employee of the Successor
Corporation is terminated by the Successor Corporation as a result of an Involuntary Termination (as defined below) within
twelve months following the Change of Control Merger, the Participant shall fully vest in and have the right to exercise
Participant’s Option or Stock Purchase Right as to all of the Optioned Stock, including Shares as to which Participant would not
otherwise be vested or exercisable. Thereafter, the Option or Stock Purchase Right shall remain exercisable in accordance with
its terms as determined by the Administrator.

                        (A) For purposes of this section, any of the following events shall constitute an “Involuntary
Termination”: (i) without the Participant’s express written consent, a significant reduction of the Participant’s duties, authority
or responsibilities, relative to the Participant’s duties, authority or responsibilities as in effect immediately prior to the Change of
Control Merger; (ii) without the Participant’s express written consent, a substantial reduction, without good business reasons,
of the facilities and perquisites (including office space and location) available to the Participant immediately prior to the Change
of Control Merger; (iii) a reduction in the base salary of the Participant as in effect immediately prior to the Change of Control 
Merger; (iv) a material reduction in the kind or level of employee benefits, including bonuses, to which the Participant was 
entitled immediately prior to the Change of Control Merger with the result that the Participant’s overall benefits package is
significantly reduced; (v) the relocation of the Participant to a facility or a location more than thirty (30) miles from the 
Participant’s then present location, without the Participant’s express written consent; or (vi) any purported termination of the 
Participant which is not effected for Disability or for Cause (as defined below), or any purported termination for which the
grounds relied upon are not valid.
  
                                                                  -17-
                      (B) For purposes of this section, “Cause” shall mean (i) any act of personal dishonesty taken by the 
Participant in connection with his responsibilities as a Service Provider and intended to result in substantial personal
enrichment of the Participant, (ii) Participant’s conviction of a felony, (iii) a willful act by the Participant which constitutes gross
misconduct and which is injurious to the Successor Corporation, and (iv) following delivery to the Participant of a written 
demand for performance from the Successor Corporation which describes the basis for the Successor Corporation’s belief that
the Participant has not substantially performed his duties, continued violations by the Participant of the Participant’s
obligations to the Successor Corporation which are demonstrably willful and deliberate on the Participant’s part.

                  (iii) Director Options Following Assumption or Substitution . Following an assumption or substitution in
connection with a Change of Control Merger, if a Participant’s status as a director of the Successor Corporation terminates
other than upon a voluntary resignation by the Participant, the Participant shall fully vest in and have the right to exercise
Participant’s Option or Stock Purchase Right as to all of the Optioned Stock, including Shares as to which Participant would not
otherwise be vested or exercisable. Thereafter, the Option or Stock Purchase Right shall remain exercisable in accordance with
its terms as determined by the Administrator.

     12. Tax Withholding

          (a) Withholding Requirements . Prior to the delivery of any Shares or cash pursuant to an Award (or exercise thereof),
the Company will have the power and the right to deduct or withhold, or require a Participant to remit to the Company, an
amount sufficient to satisfy federal, state, local, foreign or other taxes (including the Participant’s FICA obligation) required to
be withheld with respect to such Award (or exercise thereof).

           (b) Withholding Arrangements . The Administrator, in its sole discretion and pursuant to such procedures as it may
specify from time to time, may permit a Participant to satisfy such tax withholding obligation, in whole or in part by (a) paying 
cash, (b) electing to have the Company withhold otherwise deliverable cash or Shares having a Fair Market Value equal to the 
amount required to be withheld, or (c) delivering to the Company already-owned Shares having a Fair Market Value equal to the
amount required to be withheld. The amount of the withholding requirement will be deemed to include any amount which the
Administrator agrees may be withheld at the time the election is made, not to exceed the amount determined by using the
maximum federal, state or local marginal income tax rates applicable to the Participant with respect to the Award on the date that
the amount of tax to be withheld is to be determined. The Fair Market Value of the Shares to be withheld or delivered will be
determined as of the date that the taxes are required to be withheld.

     13. No Effect on Employment or Service . Neither the Plan nor any Award will confer upon a Participant any right with
respect to continuing the Participant’s relationship as a Service Provider with the Company, nor will they interfere in any way
with the Participant’s right or the Company’s right to terminate such relationship at any time, with or without cause, to the
extent permitted by Applicable Laws.
  
                                                                  -18-
      14. Date of Grant . The date of grant of an Award shall be, for all purposes, the date on which the Administrator makes the
determination granting such Award, or such other later date as is determined by the Administrator. Notice of the determination
shall be provided to each Participant within a reasonable time after the date of such grant.

      15. Term of Plan . Subject to Section 20 of the Plan, the Plan, as amended and restated on March 26, 2004, shall become 
effective upon its adoption by the Board. It shall continue in effect for a term of ten (10) years from such date, unless terminated 
earlier under Section 16 of the Plan. 

     16. Amendment and Termination of the Plan .

          (a) Amendment and Termination . The Board may at any time amend, alter, suspend or terminate the Plan.

          (b) Stockholder Approval . The Company shall obtain shareholder approval of any Plan amendment to the extent
necessary and desirable to comply with Applicable Laws.

           (c) Effect of Amendment or Termination . No amendment, alteration, suspension or termination of the Plan shall impair
the rights of any Participant, unless mutually agreed otherwise between the Participant and the Administrator, which agreement
must be in writing and signed by the Participant and the Company. Termination of the Plan shall not affect the Administrator’s
ability to exercise the powers granted to it hereunder with respect to Awards granted under the Plan prior to the date of such
termination.

     17. Conditions Upon Issuance of Shares .

          (a) Legal Compliance . Shares shall not be issued pursuant to the exercise of an Award unless the exercise of such
Award and the issuance and delivery of such Shares shall comply with Applicable Laws and shall be further subject to the
approval of counsel for the Company with respect to such compliance.

          (b) Investment Representations. As a condition to the exercise of an Award, the Company may require the person
exercising such Award to represent and warrant at the time of any such exercise that the Shares are being purchased only for
investment and without any present intention to sell or distribute such Shares if, in the opinion of counsel for the Company,
such a representation is required.

      18. Inability to Obtain Authority . The inability of the Company to obtain authority from any regulatory body having
jurisdiction, which authority is deemed by the Company’s counsel to be necessary to the lawful issuance and sale of any
Shares hereunder, shall relieve the Company of any liability in respect of the failure to issue or sell such Shares as to which
such requisite authority shall not have been obtained.

    19. Reservation of Shares. The Company, during the term of this Plan, will at all times reserve and keep available such
number of Shares as shall be sufficient to satisfy the requirements of the Plan.
  
                                                                -19-
     20. Stockholder Approval . The Plan shall be subject to approval by the shareholders of the Company within twelve
(12) months after the date the Plan is adopted. Such shareholder approval shall be obtained in the manner and to the degree 
required under Applicable Laws.
  
                                                              -20-

				
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